LIABILITY FOR DAMAGE CAUSED BY VACCINATION IN THE LEGISLATION OF BOSNIA AND HERZEGOVINA

Abstract

The importance of already significant issue of liability for damage caused by vaccines has greatly increased with the appearance of vaccines against Covid-19. The response to the question who is liable for the damage the vaccinated people may sustain is very important because the establishment of a functional vaccine damage payment to the ones who may sustain damages as a result of vaccination has now become critical for overcoming the encroaching crisis of trust in vaccination, which currently threatens the world not only in relation to Covid-19 pandemic, but also with respect to many other contagious diseases. A successful immunization policy requires, in addition to the unavoidable and continuous efforts to improve vaccine safety, also the establishment of well elaborated, reliable and quick pathway to realization of the right to compensation for those who may have suffered serious consequences as a result of vaccination.

Overview of comparative law suggests that in a number of contemporary legal systems, the parties injured by vaccines have access to several different compensation systems, two of which are particularly prominent. The first, more rigorous one, is the compensation for damages on the basis of civil liability; the second, known as the “no-fault” system, is more straightforward and better for the injured party as it is based on government programmes of compensation for the people who have suffered damage by vaccines.

Furthering on this point, this paper subjects to analysis of the legal framework for paying compensations to people injured by vaccines in Bosnia and Herzegovina, as of the moment of proclamation of the Covid-19 pandemic and throughout its duration. The primary objective of this analysis is to point at the fact that the current legal framework is inadequate in responding to potential claims for compensation of damages caused by vaccination with various vaccines, including, currently still only recommended, vaccine against the Covid-19. Despite the fact that Bosnia and Herzegovina is a country where vaccination against certain contagious diseases is mandatory, obtaining the compensation is currently possible only through the system of civil liability. For this reason, the analysis primarily focuses on the solutions provided in the entity of Laws on Obligations and looks at their compliance with the norms established under the Product Liability Directive; it also includes an overview of special regulations on production of pharmaceuticals, on the patients’ rights, and on protection against contagious diseases. As these classic paths to compensation for damage caused by vaccines in Bosnia and Herzegovina have traditionally been lengthy in duration, complicated and expensive, and as a result, there have been very few law suits being initiated before courts in Bosnia and Herzegovina, the paper discusses the alternatives that exist and are functional in comparative law, which might also be practicable in Bosnia and Herzegovina in view of the particularities of its administrative and territorial organization. In conclusion, there is a clear recognition of the necessity, in the current conditions of vaccination against Covid-19 being recommended, to urgently upgrade the legal framework to enable simpler and faster realization of the right to compensation for the damage the vaccinated people may sustain as a consequence of vaccination. Securing the right to appropriate and fast compensation to the ones who have sustained damage due to vaccination ensures the necessary balance between, on one hand, the efforts to protect public health as imposed by the Government, and on the other, the protection of guaranteed individual rights.